YALDO

Interim Decision #2002

MATTER OF YALDO

In Deportation Proceedings

A-13777983

Derided by Board July 8, 1969

Where the "good faith" of an alien's supporting marriage for adjustment of

status under section 245 of the Immigration and Nationality Act, as

amended, is a relevant issue, testimony of the alien's wife concerning con-

fidential communications between the spouses during the period of cover-

ture is admissible in evidence in rescission proceedings under section 296

of the Act.

CHARGE:

Order : Act of 1952—Section 241 (a) ( 2) [8 U.S.C. 1251 (a) (2)]—Nonim-

grant student—remained longer.

ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:

John Palumbo, Esquire R. A. Vielhaber

21261 Kelly Road Appellate Trial Attorney

East Detroit, Michigan 48021

The respondent, a native and citizen of Iraq, appeals from an

)rder entered by the special inquiry officer on December 26, 1968

;ranting him voluntary departure in lieu of deportation as an

tlien who, after entry as a nonimmigrant student, has remained

n the United States longer than permitted (8 U.S.C.

1251 (a) (2) ). Exceptions have been taken to the finding of de-

)ortability and to an order entered on August 12, 1968 rescinding

the adjustment of the respondent's immigration status to that of

permanent resident alien pursuant to section 246 of the Immi-

;ration and Nationality Act (8 U.S.C. 1255).

The respondent, a divorced male alien, 22 years of age, last en-

tered the United States through the port of Boston, Massachu-

;etts on or about July 14, 1965. He was then admitted as n.

Nonimmigrant student for a period to expire on July 13, 1966.

His status was adjusted to that of a permanent resident alien on

April 21, 1967. He acquired immediate relative status on the basis

)f a marriage to a United States citizen on December 12, 1966.

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Interim Decision #2002

His marriage to a United States citizen was terminated by a de-

cree of annulment entered on October 20, 1967.

The Board of Immigration Appeals on August 12, 1968 dis-

missed an appeal from the special inquiry officer's decision of

April 8, 1968 rescinding the adjustment of the respondent's sta-

tus to that of a permanent resident alien. The rescission of the

respondent's permanent resident status returned him to the sta-

tus of a non-immigrant visitor. He was notified on August 28,

1968 that he would be required to depart from the United States

on or before September 28, 1968. He has remained in the United

States subsequent to September 28, 1968 and is deportable on the

charge stated in the order to show cause. See Ferrante v. INS,

399 F.2d 98 (6 Cir., 1968).

The respondent contests his deportability on the ground that

error was committed by the special inquiry officer during the res-

cission proceeding. He moves this Board for a reconsideration of

our decision and order entered on August 12, 1968 dismissing his

appeal from the order of rescission entered by the special inquiry

officer on April 8, 1968. Counsel maintains that it was error to

admit the testimony of the respondent's former wife during the

rescission hearing, because conversations which took place be-

tween them during the period of coverture are privileged. Coun-

sel relies on the law of Michigan relative to such privilege.' He

also refers to the Supreme Court's decision in Pereira v. United

States, 347 U.S. 1 (1954) where the Court stated at page, 6

. 'while divorce removes the bar of incompetency, it does not ter-

minate the privilege for confidential martial communications." 2

There may be some question whether, on this appeal from a de-

portation order, we should consider such a challenge to the under-

lying rescission order. The better practice would seem to be a

direct challenge in the rescission proceeding itself. Since the rec-

ord in that proceeding was received in evidence in the deporta-

tion hearing, however, and is thus physically a part of the depor-

tation record now before us, we can conveniently consider the

issue at this point.

We reject counsel's contention that the law of Michigan rela-

tive to privileged communications controls in this proceeding. The

question of whether testimony is privileged in a federal proceed-

Michigan Statutes Annotated, 27A.2162.

The Pereira case also supports a holding that the scope of the privilege

extends only to utterance during the existence of the marital relationship

and not to acts or to utterances made prior or subsequent to the marriage,

Voliantis v. INS, 352 F.2d 766, 768 (9 Cir., 1965).

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Interim Decision #2002

ing concerned with confidential communications between husband

and wife is controlled by federal judicial interpretation in the ab-

sence of congressional legislation on the subject and not by local

statute. Cf. Wolfe v. United States, 291 U.S. 7 (1934); Blau v.

United States, 340 U.S. 332 (1951); Fraser v. United States, 145

F.2d 139, 144 (6 Cir., 1944), cert. denied 324 U.S. 849. Further-

more, even if the Michigan statute did control, we note that it

contains exceptions which would permit the testimony of the re-

spondent's wife where marital fraud is involved. 3

We noted in our decision of August 12, 1968 that the Supreme

Court's decision in Pereira sustained the privilege accorded confi-

dential communications between spouses during the existence of

the marital relationship. Our conclusion that the testimony of the

respondent's wife was admissible in the rescission proceeding is

based upon the following statement of the Supreme Court found

in Lutwak v. United States, 344 U.S. 604 (1953), at page 614:

When the good faith of the marital relation is pertinent and it is made to

appear . . . that the relationship was entered into with no intention of the

parties to live together as husband and wife but only for the purpose of

using the marriage ceremony in a scheme to defraud, the ostensible spouses

are competent to testify against each other.

The "good faith" of the marital relationship is the very essence

of the rescission proceeding. The respondent's former wife ob-

tained an annulment on the ground that the respondent had no

intention of keeping his marriage vows but entered into the mar-

riage for the sole purpose of adjusting his immigration status.

,

This is prima facie evidence that the marriage was a sham and

mtered into solely for the purpose of affording a vehicle for se-

:..uring an adjustment of his immigration status. Furthermore,

;he record of the annulment proceeding (Ex. 4) was introduced

is evidence in the rescission proceeding, and counsel for the re-

;pondent was afforded an opportunity to cross-examine the re-

;pondent's former wife. Counsel stated for the record that he had

lo objection to the introduction of the record of the annulment

)roceedings "since it is a part of the public record," although he

lid qualify his nonobjection with a request for the right of

ross-examination, which was granted, and a statement that he

lid not necessarily "agree to the contents of what these records

nay show" (p. 21). Under the circumstances, we conclude that

3 The Michigan statute (27A.2162) states the common law rule and pro-

iides for numerous exceptions, one of which reads "where the cause of ac-

,ion grows out of a personal wrong or injury done by one to the other."

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Interim Decision #2002

the test with regard to privilege as stated in Lutwak (supra) was

clearly met in the rescission proceeding.

Counsel argues that the fact that the respondent did not file an

answer to the counter complaint for annulment was given "much

significance" in the Board's opinion of August 12, 1968. Counsel

alleges that it is "common practice" in Wayne County, Michigan,

to resort to "the taking of default judgments in domestic relation

cases" in order to expedite a final judgment (p. 3 of counsel's

brief). Counsel has submitted a letter, dated October 8, 1968,

from the Assistant Circuit Court Administrator for Wayne

County, Michigan which states "that the average time required ...

to bring a contested divorce case to trial is approximately 37

months." While this may be common practice in the courts of

Wayne County, Michigan, nevertheless, the failure to answer the

counterclaim is evidence of the fact that the respondent made no

attempt to establish his allegations of a "good faith" marriage as

set forth in his complaint for a divorce (Ex. 4). Under the cir-

cumstances, this factor is significant in light of the test for com-

petency set forth in Lutwalk (supra).

Counsel argues that the special inquiry officer and this Board

gave improper weight to the testimony of the respondent's for-

mer wife in light of her testimony that she would have been con-

tent to remain married to the respondent if he had not instituted

divorce proceedings and that it was after he started the divorce

proceedings that she decided to annul the marriage (p. 47). Coun-

sel maintains that this testimony of the respondent's former wife

clearly shows that it was designed as a method of revenge upon

the respondent, and such biased testimony cannot be the basis of

a deportation order within the guidelines set by the Lutwak case

(supra) (p. 5, counsel's brief). Counsel urges a reconsideration of

the order of rescission.

We find no merit to counsel's argument that the testimony of

the respondent's former wife was biased and contrived as a mat-

ter of revenge. Her testimony that she would have been content

to remain married to the respondent had he not instituted di-

vorce proceedings is merely cumulative of her testimony that she

married the respondent in good faith (p. 28) and that it was to

protect her own interest that she counterclaimed for an annul-

ment (p. 43). Under the circumstances, we find no basis for a re-

consideration of the rescission proceeding as the points raised by

counsel have no foundation in either fact or law on this record.

Since the respondent has reverted to the status of a nonimmi-

grant alien and has remained in the United States subsequent to

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Interim Decision #2002

September 28, 1968 as charged in the order to show cause, we

find that there is clear, unequivocal, and convincing evidence that

the facts alleged as grounds for deportation are true. Cf. Woodby

v. INS, 385 U.S. 276 (1966) .

We affirm the order entered by the special inquiry officer and

will dismiss the appeal. Since the execution of the order entered

by the special inquiry officer has been stayed during the pendency

of this appeal, we will provide for the voluntary departure of the

respondent within 30 days from the date-of this decision.

ORDER: It is ordered that the appeal be and the same is

hereby dismissed.

It is further ordered that, pursuant to the special inquiry

officer's order, the respondent be permitted to depart from the

United States voluntarily within 30 days from the date of this de-

cision or any extension beyond that time as may be granted by

the District Director; and that, in the event of failure so to depart,

the respondent shall be deported as provided in the special in-

quiry officer's order.

378